870 F.2d 1327 (7th Cir. 1989), 88-1349, Wolf v. City of Fitchburg

Docket Nº:88-1349.
Citation:870 F.2d 1327
Party Name:Nancy WOLF, Plaintiff-Appellant, v. CITY OF FITCHBURG and G. Jean Seiling, Defendants-Appellees.
Case Date:March 27, 1989
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

Page 1327

870 F.2d 1327 (7th Cir. 1989)

Nancy WOLF, Plaintiff-Appellant,

v.

CITY OF FITCHBURG and G. Jean Seiling, Defendants-Appellees.

No. 88-1349.

United States Court of Appeals, Seventh Circuit

March 27, 1989

Argued Sept. 19, 1988.

Page 1328

Steven J. Schooler, Axley & Brynelson, Madison, Wis., for plaintiff-appellant.

Fred Gants, DeWitt Porter Huggett Schumacher & Morgan, Madison, Wis., for defendants-appellees.

Before POSNER, RIPPLE and KANNE, Circuit Judges.

RIPPLE, Circuit Judge.

The plaintiff-appellant Nancy Wolf appeals the district court's grant of summary judgment on all counts to the defendants-appellees City of Fitchburg, Wisconsin and G. Jean Seiling. In her section 1983 complaint, Ms. Wolf alleged violations of her constitutional right to due process stemming from her termination as treasurer of Fitchburg and requested injunctive and monetary relief. The district court held that Ms. Wolf failed to establish any genuine issue of material fact to support her claim and that the defendants were entitled to judgment as a matter of law. We affirm.

I

FACTS

Nancy Wolf is the former treasurer of the City of Fitchburg, Wisconsin; G. Jean Seiling is the former mayor of Fitchburg. The relevant facts of this case reach back to April 1981 when Ms. Wolf was first elected as treasurer of the then-Town of Fitchburg; she was re-elected to that position in April 1983. Town treasurer was a

Page 1329

part-time job--entailing only twenty hours of work per week.

In April 1983, soon after Ms. Wolf's re-election, the Town was re-incorporated as the City of Fitchburg. On August 2, 1983, the city council (Council) met to prepare a transition from the town to city form of government. Then-Mayor LeFrambois proposed, and the Council approved, a motion to appoint Ms. Wolf as city treasurer for the remainder of her election term (until April 1985). Ms. Wolf took the oath of office and filed a bond as city treasurer.

Over the course of the next year, the Council took three actions that are relevant to this case. First, in August 1983, the Council re-adopted the town's civil service ordinance (CSO) to apply to the city employees. Fitchburg, Wis., Ordinance 83-03, R.54 at Ex. 2. Second, in October 1983, the Council adopted Ordinance 83-05, which provides that appointments to city office shall be by mayoral appointment subject to Council confirmation. Fitchburg, Wis., Ordinance 83-05, R.47 at Ex. 3. Third, on April 10, 1984, the Council adopted the recommendations contained in a study of the city government structure prepared by the accounting firm of Arthur Young. Fitchburg City Council Minutes, Apr. 10, 1984, Dep. of Melby at Ex. 6. That study suggested that the half-time positions of city treasurer and deputy clerk be categorized as civil service appointments.

On April 24, 1984, pursuant to the selection procedures of the CSO, Ms. Wolf received a second job, deputy clerk. This position required 20 hours of work per week. Since the position of city treasurer was also a part-time job--entailing only twenty hours of work per week--Ms. Wolf now worked forty hours per week. City budgets for the years 1985, 1986, and 1987 showed as a single line-item Ms. Wolf's salary as "treasurer-clerk." In 1985, she received statements from the city clerk and the alderman who chaired the city's personnel committee that the position of treasurer was now "within the civil service." During that time, she also received fringe benefits such as paid holidays, sick leave, and hospitalization protection on a par with those benefits received by full-time permanent civil servants.

In April 1985, Ms. Seiling was elected mayor. She did not reappoint Ms. Wolf as treasurer, nor did she appoint anyone else to the office. Ms. Wolf continued working as city treasurer. In April 1987, Mayor Seiling was re-elected, and on April 28, she announced her intention "not to reappoint" Ms. Wolf as treasurer. Ms. Wolf continued in the office until a new treasurer was appointed and confirmed.

Maintaining that she was a civil servant, Ms. Wolf requested a hearing as to whether there was cause for her termination. Her request was denied. Ms. Wolf then brought this action under 42 U.S.C. Sec. 1983 in which she sought reinstatement and damages stemming from the alleged violation of her due process rights under the Constitution.

II

ANALYSIS

A.

In this appeal, we review de novo the district court's grant of summary judgment to the defendants. "[W]e must decide whether the record shows that there is no genuine issue as to any material fact and that the moving party is entitled to the judgment as a matter of law." Colan v. Cutler-Hammer, Inc., 812 F.2d 357, 360 (7th Cir.) (per curiam), cert. denied, --- U.S. ----, 108 S.Ct. 79, 98 L.Ed.2d 42 (1987); see also DeValk Lincoln Mercury, Inc. v. Ford Motor Corp., 811 F.2d 326, 329 (7th Cir.1987).

With respect to the existence of a genuine issue of material fact, we note that both sides submitted substantial evidence--affidavits, depositions, and documentary exhibits--to the district court. A genuine issue of material fact exists only where "there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986); see also Fed.R.Civ.P. 56. At the "summary judgment stage, the

Page 1330

judge's function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Anderson, 477 U.S. at 249, 106 S.Ct. at 2511. If the evidence presented by the nonmovant, Ms. Wolf, was merely colorable or was not significantly probative, summary judgment would be proper. See id. at 249-50, 106 S.Ct. at 2510-11; see also First Nat'l Bank of Arizona v. Cities Serv. Co., 391 U.S. 253, 290, 88 S.Ct. 1575, 1593, 20 L.Ed.2d 569 (1968); Dombrowski v. Eastland, 387 U.S. 82, 87 S.Ct. 1425, 18 L.Ed.2d 577 (1967) (per curiam). If, however, doubts remain as to the existence of a material fact, then those doubts should be resolved in favor of the nonmoving party and summary judgment denied. DeValk Lincoln Mercury, 811 F.2d at 329; Dreher v. Sielaff, 636 F.2d 1141, 1143 n. 4 (7th Cir.1980); see also Anderson, 477 U.S. at 251-52, 106 S.Ct. at 2511-12 (like the standard for directed verdict, summary judgment inquiry addresses "whether the evidence presents sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law").

With respect to the legal merits of her claim, Ms. Wolf's submission is that the appellees violated her constitutional right to due process by discharging her as treasurer. To prevail under the due process clause in the employment context, a plaintiff must establish a property interest in the employment. As the Supreme Court noted in Board of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548 (1972):

To have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it. It is a purpose of the ancient institution of property to protect those claims upon which people rely in their daily lives, reliance that must not be arbitrarily undermined. It is a purpose of the constitutional right to a hearing to provide an opportunity for a person to vindicate those claims.

Property interests "are not created by the Constitution. Rather, they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law--rules or understandings that secure certain benefits and that support claims of entitlement to those benefits." Id.

B.

The district court ruled that Ms. Wolf failed to establish that her appointment as treasurer of Fitchburg was protected by (1) state or municipal law, or (2) a mutually explicit understanding. We shall examine each of these determinations separately.

  1. Employment Protected By State or Municipal Law?

    Ms. Wolf invites our attention to several Fitchburg city ordinances and Wisconsin state statutes as the primary sources of her right to continued employment. In assessing these claims, we begin by noting that a district court's determinations of state property law, particularly those based on complex and seldom-interpreted provisions of state and local enactments, will not be lightly overturned. See Fontano v. City of Chicago, 820 F.2d 213 (7th Cir.1987) (per curiam) (section 1983 case). "[T]he interpretation of state law by a district court judge sitting in the state whose law is in question is entitled to considerable deference." Id. at 215. Accordingly, while accepting the ultimate responsibility to review de novo questions of law, we shall accord great weight to the analysis of the district court.

    a) The basic statutory scheme

    As the district court noted, the Wisconsin statutory provisions on city organization clearly state that "[t]he officers [of a city] shall be a mayor, treasurer, clerk,...." Wis.Stat. Ann. Sec. 62.09(1)(a) (emphasis supplied). Sections 62.09(3)(d) and (e) of the Wisconsin statutes outline the procedures by which officers in a newly created city are initially appointed. They provide that:

    Page 1331

    (d) Whenever a city is newly created the officers other than [the mayor and aldermen] shall be appointed by the mayor until provided otherwise....

    (e) Appointments by the mayor shall be subject to confirmation by the council unless otherwise provided by law.

    Wis.Stat.Ann. Secs. 62.09(3)(d), (e). Ms. Wolf's initial appointment to the office of treasurer in August 1983 was made pursuant to these provisions. 1

    After initial organization, a city may, under section 62.09, choose one of several methods for appointing officers. See id. On October...

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    • January 27, 1992
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